Citation Nr: 0740564
Decision Date: 12/27/07 Archive Date: 01/02/08
DOCKET NO. 05-32 966 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The service department records certified the veteran's
service in the Philippines in World War II as follows: pre-
war service from November 2, 1941 to December 7, 1941;
Beleaguered status from December 8, 1941, to April 9, 1942;
POW (prisoner of war) status from April 10, 1942, to
September 28, 1942; no casualty status from September 29,
1942, to August 6, 1945; and regular Philippine Army service
from August 7, 1945, to June 30, 1946. He died in April
1977. The appellant is his widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a May 2005 rating decision by the
Department of Veterans' Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines, which denied the
appellant's claim for service connection for the cause of the
veteran's death.
In September 2005, the appellant indicated on her appeal form
(VA Form 9) that she desired a hearing before at the Central
Office before a Veterans Law Judge. However, in a statement
received by the Board in November 2007, the appellant stated
that she wished to withdraw her request for a hearing. See
38 C.F.R. § 20.702(e) (2007). Accordingly, the Board will
proceed without further delay.
FINDINGS OF FACT
1. The veteran died in April 1977, at the age of 60.
According to the postmortem death certificate, the cause of
his death was malignancy involving the right lung, tracheo
bronchial esophageal lymph nodes and thoracic vertebra,
bronchopneumonia bilateral with pleural effusion 1400 cc
right and 400 cc left; atherosclerosis aorta, acute mucosal
ulcer, stomach.
2. In October 1953, the service department certified that
the veteran was a prisoner of war from April 10, 1942, to
September 28, 1942.
3. Service connection was not in effect for any disease or
disability during the veteran's lifetime.
4. The veteran's cause of death is related to his service.
CONCLUSION OF LAW
Service connection for the veteran's cause of death is
warranted. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service Connection
To establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. 38
C.F.R. § 3.312 (2007); see 38 U.S.C.A. § 1310 (West 2002).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The issue involved will be
determined by exercise of sound judgment, without recourse to
speculation, after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran, including, particularly, autopsy reports. 38 C.F.R.
§ 3.312(a) (2007).
The service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. 38 C.F.R. § 3.312(b) (2007). A
contributory cause of death is inherently one not related to
the principal cause. In determining whether the service-
connected disability contributed to death, it must be shown
that it contributed substantially or materially; that it
combined to cause death; that it aided or lent assistance to
the production of death. It is not sufficient to show that
it casually shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R.
§ 3.312(c)(1) (2007).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection
may also be granted on the basis of a post-service initial
diagnosis of a disease, when "all of the evidence, including
that pertinent to service, establishes that the disease was
incurred during service." See 38 C.F.R. § 3.303(d). Service
connection may also be granted for certain diseases, to
include atherosclerotic heart disease, and its complications,
for a veteran who is a former prisoner of war, if manifested
to a degree of disability of 10 percent or more at any time
after discharge or release from active military, naval, or
air service, even though there is no record of such disease
during service, provided the rebuttable presumptions of 3.307
are also satisfied. 38 C.F.R. § 3.309(e).
The term former prisoner of war means a person who, while
serving in the active military, naval or air service, was
forcibly detained or interned in the line of duty by an enemy
or foreign government, the agents of either, or a hostile
force. The VA shall accept the findings of the appropriate
service department that a person was a POW during a period of
war unless a reasonable basis exists for questioning it. 38
U.S.C.A. § 101(32) (West 2002); 38 C.F.R. § 3.1(y) (2007).
The veteran's service medical records do not show any
relevant medical treatment. Service connection was not in
effect for any disease or disability during the veteran's
lifetime.
In October 1953, the service department certified that the
veteran was a prisoner of war from April 10, 1942, to
September 28, 1942. See also National Personnel Records
Center report, received in June 2005.
In this case, the medical evidence includes a VA hospital
report, dated in April 1977, which indicates that the veteran
was admitted with a number of conditions, to include
"malignancy involving the right lung, tracheo brochial
esophageal lymph nodes and thoracic vertebra," and
"atherosclerosis, aorta." The report notes the following:
the veteran was treated for symptoms of hypotension and
difficulty breathing, as well as cough and abdominal pain; he
was noted to have a mass lesion near the spinal cord that was
probably metastatic; on the sixth day of his stay he
developed difficulty breathing, went into cardiorespiratory
arrest, and expired.
A certificate of death, dated in April 1977, does not list a
cause of death. However, a "postmortem certificate of
death," also dated in April 1977, states that the cause of
death was: "malignancy involving the right lung, tracheo
brochial esophageal lymph nodes and thoracic vertebra,
bronchopneumonia bilateral with pleural effusion 1400 cc
right and 400 cc left; atherosclerosis aorta, acute mucosal
ulcer, stomach."
The Board has determined that service connection for the
cause of the veteran's death is warranted. The veteran was a
former POW and his atherosclerosis is presumed to be related
to his service. See 38 C.F.R. § 3.309(e). Atherosclerosis
is listed among the veteran's disorders in the April 1977 VA
hospital report, which covers the veteran's treatment for the
six days prior to his death. Atherosclerosis is also listed
as one of the causes of death in the postmortem certificate
of death. VA regulations provide that a "service-connected
disability will be considered as the principal cause of death
when such disability, singly or jointly with some other
condition, was the immediate or underlying cause of death or
was etiologically related thereto." 38 C.F.R. § 3.312(b).
In this case, there is no competent evidence of record upon
which to rule out athersclerosis (which the postmortem
certificate of death lists as one of the causes of death), as
the immediate or underlying cause of death (either singly, or
jointly with some other condition), or to otherwise find that
it was not etiologically related to the cause of death, nor
may the Board presume such a lack of a relationship. See
Colvin v. Derwinski, 1 Vet. App. 171 (1991).
Given the foregoing, and affording the appellant the benefit
of all doubt, the Board finds that the evidence is at least
in equipoise, and that service connection for the cause of
the veteran's death is therefore warranted. 38 U.S.C.A. §
5107; 38 C.F.R. §§ 3.309(c), 3.312. Accordingly, the
appellant's claim for entitlement to service connection for
the cause of the veteran's death is granted.
II. Duty to notify and assist
There has recently been a significant change in the law with
the enactment of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding
that VA cannot assist in the development of a claim that is
not well grounded). The new law also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
was implemented with the adoption of new regulations. See
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326a.
In this case, in a letter, dated in February 2005, the
appellant was notified of the VCAA, and of her duties to
obtain evidence. Furthermore, as the Board has fully granted
the appellant's claim, the Board finds that a detailed
discussion of the VCAA is unnecessary. Any potential failure
of VA in fulfilling its duties to notify and assist the
appellant is essentially harmless error. See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004).
Any error in the failure to provide notice involving the
downstream elements of rating and effective date is harmless
at this time, and can be corrected by the RO following the
Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
ORDER
Service connection for the cause of the veteran's death is
granted.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs